Madras High Court
Bhaskar vs G.Selvaraj on 15 April, 2009
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.04.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.1620 of 2001 and C.M.P.No.21537 of 2001 Bhaskar ... Appellant Vs. 1. G.Selvaraj 2. S.Kaliammal 3. The Commissioner Corporation of Chennai Rippon Building, Chennai - 3 4. The Managing Director Chennai Water Supply and Sewerage Board No.1, Pumping Station Road Chintadripet, Chennai 600 002 ... Respondents This Civil Miscellaneous Appeal has been filed under Section 30 of the Workmen's Compensation Act, 1923 to set aside the order dated 06.11.2000 in W.C.No.263 of 1997 on the file of the Commissioner for Workmen's Compensation-II, Chennai. For Appellant : Mr.N.Karthikeyan For Respondents: Mr.V.Sakthivel (for R1 & R2) Mr.V.Bharathidasan (for R3) J U D G M E N T
This civil miscellaneous appeal has been preferred under Section 30 of the Workmen's Compensation Act, 1923 against the order of the Deputy Commissioner of Labour-II (Commissioner for Workmen's Compensation-II), Chennai-600 006 dated 06.11.2000 made in W.C.No.263/1997.
2. The 2nd opposite party before the Commissioner for Workmen's Compensation is the appellant herein. The claimants before the Commissioiner for Workmen's Compensation are the respondents 1 and 2 in the appeal. The first and third opposite parties in the WC are the respondents 3 and 4 in the appeal.
3. For the death of one Sivakumar son of the respondents 1 and 2 herein, they made a claim before the Commissioiner for Workmen's Compensation-II (Deputy Commissioiner of Labour-II), Chennai-600 006 under Section 10(1) of the Workmen's Compensation Act, 1923 for compensation. The undisputed fact is that the deceased Sivakumar, while clearing the drainage blocks through the man-hole at the junction of the first and second main Roads, Shaik Abdullah Nagar, Chennai-92 on 03.10.1996 at about 1.45 p.m he got deep into drain water; that though the persons nearby were able to get him out in an unconscious condition and admitted him in the Government Hospital, Royapettah, the doctors could not save his life and that he died of Asphyxia due to drowning within a couple of hours after admission in the said hospital for treatment.
4. Contending that he was employed under the appellant herein(second opposite party in the WC) on a monthly salary of Rs.1,500/- and that the above said accident had occurred out of and during the course of his employment under the second opposite party (the appellant herein), the claimants (respondents 1 and 2 herein) had preferred the above said claim in W.C.No.263/1997. It was their contention in the claim petition that the appellant herein (second opposite party) was the immediate employer whereas principal employer was the third respondent herein (first opposite party in WC), namely the Commissioner, Corporation of Chennai. Contending further that the appellant herein (second opposite party) did the job of clearing the blocks in the drainage channel employing the deceased Sivakumar on behalf of the principal employer, namely the Commissioiner, Corporation of Chennai, the respondents 1 and 2 herein (claimants in the WC) had made the claim initially against the appellant herein and the respondent no.3 alone. The third respondent (first opposite party) did not file any counter statement and remained exparte. The appellant herein/second opposite party entered appearance and filed a counter statement denying the averments found in the claim application regarding employment of the deceased Sivakumar. He had also contended that there was no connection between himself and the third respondent herein (first opposite party) and that even if it could be assumed that the appellant was the immediate employer of the deceased, the 3rd respondent herein/first opposite party could not be termed as the principal employer. It was also his contention in the counter statement that he was only a plumber under the 4th respondent herein, namely the Managing Director, Chennai Water Supply and Sewerage Board, Chennai.
5. In view of the said stand taken by the appellant/second opposite party, the respondents 1 and 2 herein/claimants took steps to implead the Managing Director of Chennai Water Supply and Sewerage Board as the third opposite party and accordingly the fourth respondent herein was impleased as the third opposite party in the WC. The fourth respondent herein/third opposite party filed a counter statement contending that license was granted to the appellant/second opposite party to give water or sewerage connections to the buildings from the main lines and that under the license he did not have any right or obligation to clear any block in the main sewerage channel; that the said job was being done by the fourth respondent (third opposite party) directly through their employees and that hence if at all the deceased Sivakumar had been engaged by the appellant/second opposite party for the said purpose, the same was unauthorised and hence the fourth respondent/third opposite party could not be held liable as the principal employer.
6. In the light of the above said contentions, the parties went for enquiry. The first respondent herein/first claimant by name Selvaraj was examined as PW-1. Two persons named Thomas and Subramani were examined as PW-2 and PW-3 respectively. As many as eleven documents were marked as Ex.A1 to A11 on the side of the claimants. The appellant was examined as RW-1 and one Mr.Iyyanar Bharathi was examined as RW-2 and six documents were marked as Ex.R1 to R6 on the side of the appellant herein/2nd opposite party.
7. The Deputy Commissioner of Labour-II, Chennai, in his capacity as Commissioner for Workmen's Compensation-II, after considering the above said evidence came to the conclusion that the third respondent herein (first opposite party), namely the Commissioner, Corporation of Chennai did have no connection either with the deceased or with the appellant/first opposite party; that the maintenance of sewerage was not the job of the Corporation of Chennai and that the same was the responsibility of the fourth respondent herein/third opposite party, namely the Managing Director, Chennai Metro Water Supply and Sewerage Board. The Commissioner for Workmen's compensation also held that though the appellant/second opposite party was the licensed plumber, having been given license by the fourth respondent/third opposite party to give water and sewerage connections to the houses from the main lines, under the said license the appellant/second opposite party had not been authorised to undertake the job of clearing any block found in the main sewerage channel. The Commissioner also held that the same was looked after by the fourth respondent/third opposite party directly through the employees of the Board. However, the Commissioner for Workmen's Compensation held that the claimants were able to prove that the deceased was under the employment of the appellant/second opposite party and it was the appellant who engaged the deceased to go into the man-hole to clear the blocks and that hence the appellant/second opposite party alone was liable to pay compensation to the respondents 1 & 2/claimants.
8. The Commissioner assessed the wages of the deceased at the rate of Rs.1,050/- per month based on District Collector's fixation of wages for the year 1996 as Rs.35/- in the absence of minimum wages fixed by the Government. Taking the age of the deceased to be 25, 216.91 was selected as the relevant factor and the total compensation was worked out at Rs.1,13,878/-. The Commissioiner for Workmen's Compensation-II, Chennai ultimately passed an order directing the appellant/second opposite party to deposit the above said sum within 30 days from the date of receipt of the said order with a further direction that in case of default in depositing the said amount within 30 days, the same shall carry an interest at the rate of 12% per annum from the date of filing of the claim petition. So far as the respondents 3 and 4 in the appeal (first and third opposite parties) are concerned, the claim petition was dismissed.
9. Aggrieved by and challenging the said award dated 06.11.2000 directing the appellant to pay compensation, the present civil miscellaneous appeal has been filed under Section 30 of the Workmen's Compensation Act, 1923, on various grounds set out in the memorandum of civil miscellaneous appeal.
10. This court heard the submissions made by Mr.N.Karthikeyan, learned counsel for the appellant and Mr.V.Sakthivel, learned counsel for the first and second respondent and that of Mr.V.Bharathidasan, learned counsel for the third respondent. The materials available on record submitted by the lower authority for reference in this appeal were also perused.
11. Section 30 of the Workmen's Compensation Act, 1923 provides that an appeal shall lie from the orders of a Commissioiner for Workmen's Compensation only on a substantial question of law. Section 30 of the Workmen's Compensation Act, 1923 reads as follows:
" 30. Appeals (1) An appeal shall lie to the High Court from the followings orders of a Commissioiner, namely
(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (aa) an order awarding interest or penalty under Section 4-A;
(b) an order refusing to allow redemption of a half-monthly payment;
(c) an order providing for the distribution of compensation among the dependents of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of Section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions;
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:
Provided further, that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the oder of the Commissioner gives effect to an agreement come to by the parties.
Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.
(2) The period of limitation for an appeal under this section shall be sixty days.
(3) The provisions of Section 5 (the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section."
12. The first proviso to clause 1 makes it clear that no appeal shall lie against any order of the Commissioner for Workmen's Compensation unless a substantial question of law is involved in the appeal. The following were the substantial questions of law framed by this court at the time of admission.
1. Whether the parents are dependants as defined under Section 2(1)(d) of the W.C.Act 1923?
2. In the absence of any evidence to prove dependence on the income of the deceased, whether the parents are dependents as defined under the W.C.Act, 1923?
3. Whether the applicant can be held liable for compensation where there was no employer-employee relationship?
4. Even an assumption of employer-employee relationship without admitting under Sect.2(n) of the W.C.Act 1923 whether the appellant is liable as the nature of work done by the deceased was not the work trade or business of the applicant?
13. Let us now take up the said questions framed as substantial questions of law for consideration one by one. The question framed as the 4th substantial question of law involved in this case does not need elaborate consideration. The appellant (second opposite party) is admittedly a plumber licensed by the Chennai Metro Water and Sewerage Board to give water and sewerage connections to the buildings from the main lines. Therefore we cannot say that the work of clearing the blocks found in the sewerage channels is totally unconnected with the nature of work done or trade or business carried on by the appellant. Whether he was given authority by the Sewerage Board or not is not relevant for determination of the fourth substantial question. What is relevant is whether the work allegedly entrusted to the deceased by the appellant is connected with trade or business of the appellant. As it has been admitted that the deceased is a plumber licensed by the Managing Director, Chennai Water Supply and Sewerage Board and that by such license he was authorised to give water and sewerage connections to the buildings from the main lines, this court comes to the conclusion that, if at all the work of clearing the blocks found in the main sewerage channel was entrusted by the appellant to the deceased, the same cannot be said to be totally unconnected with the trade or business of the appellant. Therefore the 4th substantial question of law has to be necessarily answered against the appellant and in favour of the respondents 1 and 2/claimants.
14. The first and second substantial questions framed by this court at the time of admission are in effect one and the same. Hence they are take up together for discussion. It is the contention of the appellant that the claimants being parents of the deceased, in the absence of any evidence to the effect that they were dependents of the deceased, the award of compensation under the Workmen's Compensation Act in their favour cannot be sustained. The learned counsel for the appellant contends that neither in the claim petition nor in the evidence, clear-cut averments were made to the effect that the respondents 1 and 2/claimants 1 and 2 were in fact dependent upon the income of the deceased and thus they were dependents of the deceased.
15. Section 2(d) of the Workmen's Compensation Act, 1923 defines the term dependent. It reads as follows:
(d) "dependent" means any of the following relatives of a deceased workman, namely
(i) a widow, a minor (legitimate or adopted) son, an unmarried (legitimate or adopted) daughter, or a widowed mohter; and
(ii) if wholly dependent on the earnings of the workman at the time of his death, a son or a daughter who has attained the age of 18 years and who is infirm;
(iii) if wholly or in part dependant on the earnings of the workman at the time of his death
(a) widower
(b) a parent other than a widowed mother,
(c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter (legitimate or illegitimate or adopted) if married and a minor or if widowed and a minor,
(d) a minor brother or an unmarried sister or a widowed sister if a minor,
(e) a widowed daughter-in-law.
(f) a minor child of a pre-deceased son,
(g) a minor child of a pre-deceased daughter where no parent of the child is alive, or
(h) a paternal grandparent if no parent of the workman is alive;
Explanation For the purposes of sub-clause (ii) and items (f) and (g) of sub-clause (iii), references to a son, daughter or child include an adopted son, daughter of child respectively.
16. A widowed mother becomes a dependent without any further proof of dependency as per Sub clause (i) of Section 2(d) whereas, as per Section 2(d) sub-clause (iii)(b), a parent other than a widowed mother will become a dependent only if he/she is wholly or in part dependent on the earnings of the workman at the time of his death. In the case on hand, the respondents 1 and 2 herein/claimants 1 and 2 are admittedly the parents of the alleged workman, namely the deceased Sivakumar. They don't come under Section 2(d) sub clause (i). As they come under sub clause(iii) of Section 2(d) it must be proved that they were either wholly or in part dependent on the earnings of the deceased at the time of his death. No where in the claim petition, as rightly pointed out by the learned counsel for the appellant, it has been stated that any one of the respondents 1 and 2 herein/claimants 1 and 2 was either wholly or in part depending on the earnings of the workman. Even the first respondent herein/first claimant, in his evidence as PW-1 has not stated anything about the contribution of the earnings of the deceased to the claimants. Nothing is there in his evidence to show that the respondents 1 and 2/claimants did receive any monetary support from the deceased or that they were either wholly or in part depending upon his earnings. Even the other witnesses examined on the side of the claimants, namely PW-2 and 3 have not spoken anything about the dependency of the respondents 1 and 2/ claimants 1 and 2 on the deceased. Therefore, this court has no other option except to accept the contention of the learned counsel for the appellant that the respondents 1 and 2/claimants 1 and 2 have not proved that they were depending on the income of the deceased either in whole or in part to make themselves entitled to claim compensation under the Workmen's compensation Act for the death of the deceased.
17. In support of his contention the learned counsel for the appellant drew the attention of this court to the judgment of a learned single judge of this court in The Superintending Engineer, Tiruvanamalai Electricity System, North Arcot District Vs. S.Kannaiyan & 2 others reported in 1999 (III) CTC 416. In the said case the learned single judge has clearly analysed the difference between clause (i) of Section 2(d) and other clauses of Section 2(d) and has clearly observed that only those who are found in Clause (i) would be the dependents without any further proof of dependency on the earnings of the workman and that those who come under the subsequent clauses, namely clause (ii) and (iii) have to prove their dependency on the earnings of the deceased workman to make themselves entitled to claim compensation. I am in complete agreement with the observations made by the learned single judge in the above said case. Any one coming under clause (i) of Section 2(d) shall be the dependent without any further proof of dependency on the earnings of the deceased workman. Anyone coming under clause (ii) of Section 2(d), namely a son or daughter who has attained the age of 18 years and who is infirm shall be a dependent provided he or she was wholly dependent on the earnings of the workman at the time of this death. So far as the other persons who come under clause (iii) are concerned, to be recognised as dependents entitled to claim compensation, they have to prove that they were either wholly or in part dependent on the earnings of the workman at the time of his death.
18. The respondents 1 and 2/claimants 1 and 2 come under Sub clause (b) of Section 2(d)(iii). As such unless they prove that they were either wholly or partly depending upon the earnings of the deceased, they cannot maintain a claim and their claim for compensation under the Workmen's Compensation Act has to be negatived. In this case, as pointed out supra, there is no evidence to show that they were either wholly or partly depending upon the earnings of the deceased. Therefore, the first and second substantial question framed, have to be answered in favour of the appellant and the appeal shall succeed on those substantial questions of law.
19. The third substantial question framed at the time of admission is that whether the respondents 1 and 2/claimants were able to prove the jural relationship of employer-employee between the appellant and the deceased Sivakumar. Of course it is the specific averment made in the claim petition that the deceased was employed under the appellant. Some kind of evidence has also been adduced to substantiate the contention of the respondents 1 and 2/claimants 1 and 2 to prove that the deceased was an employee under the appellant at the time of accident and that the accident itself took place out of and in the course of his employment under the appellant. The same happened to be the evidence of PW-1 to 3. Normally, the High Court, in appeal under Section 30 of the Workmen's Compensation Act, shall not interfere in a finding on a question of fact. The Commissioiner for Workmen's Compensation has given a finding on a question of fact that the deceased Sivakumar was under the employment of the appellant herein.
20. At the outset it may look like a pure question of fact in which this court cannot interfere in exercise of its appellate powers under Section 30 of the Workmen's Compensation Act. However, it has been repeatedly held in a number of cases that a question of fact will assume the character of a substantial question of law if the finding is perverse. If a finding of fact is based on no evidence or based on inadmissible evidence alone or on the basis of the evidence, no reasonable person would have arrived such a conclusion, then such finding, though a finding of fact, shall be elevated to the level of a substantial question of law.
21. In this case, though there is oral evidence to the effect that the deceased was under the employment of the appellant/second opposite party, most parts of the evidence seem to be hearsay. There is no document, not even a scrap of paper to show that the deceased was employed under the appellant and he was in receipt of wages from the appellant. However, the respondents 1 and 2/claimants have produced Ex.A11 - a copy of the alleged statement of the first respondent/first claimant given to the police attested by a number of persons. The same seems to be a self-serving document created for the purpose of showing that the deceased was under the employment of the appellant. The first respondent/first claimant, while deposing as PW-1, would state that after the accident, pursuant to the mediation of panchayatdars the appellant paid a sum of Rs.20,000/- as compensation to the respondents 1 and 2/claimants. The said version of PW-1, was also supported by the parole evidence of PW-3, which was also supported by PW-2. In order to substantiate the same Ex.A11 - statement has been produced. But it is pertinent to note that the same does not contain the signature of the appellant, who is said to have paid a sum of Rs.20,000/- as compensation to the first claimant. The said amount was paid according to PW-1 and Ex.P11 on 04.10.1996, namely a day after the death of the deceased. If at all it is true that the appellant paid such an amount, then there won't be any occasion for the respondents 1 and 2/claimants to make a claim for compensation before the Commissioner for Workmen's Compensation.
22. On the other hand, if the claimants were not satisfied with the quantum of compensation allegedly paid by the appellant, they would have chosen to pray for an award of compensation as per the formula found in the Act minus the said amount already received by them. But the claim petition does not contain any reference to such panchayat or the alleged payment of a sum of Rs.20,000/- as compensation. The claim petition also does not make any reference to Ex.A11 statement.
23. It shall also be pertinent to note that prior to the filing of the claim petition, the claimants caused a legal notice to be issued through their lawyer on 04.04.1997, a copy of which has been marked as Ex.A9. The acknowledgment has been marked as Ex.A10. Even in the said notice, no reference has been made to such a payment of Rs.20,000/- or any other amount as compensation by the appellant. The same will clearly make it obvious that as an afterthought only Ex.A11 has been brought into existence. Under the circumstances, no reasonable person would have arrived at a conclusion that the evidence was sufficient to substantiate the case of the respondents 1 and 2/claimants that the deceased was under the employment of the appellant. Therefore this court comes to the conclusion that the finding of the Commissioiner for Workmen's Compensation to the effect that the deceased Sivakumar was employed under the appellant at the time of his death should be held a perverse finding capable of being interfered with by this court in exercise of its appellate power under Section 30 of the Workmen's Compensation Act. Therefore, this court comes to the conclusion that the appeal succeeds on the third substantial question of law also.
24. For all the reasons stated above, this court is of the considered view that the order of the Commissioiner for Workmen's Compensation-II (Deputy Commissioner of Labour-II), Chennai-600006 cannot stand the scrutiny of this court and the same deserves to be reversed.
25. In the result the appeal is allowed. Order of the Commissioiner for Workmen's Compensation-II (Deputy Commissioner of Labour-II), Chennai-600006 is hereby set aside and the claim petition made by the claimants shall stand dismissed in its entirety. Consequently, connected miscellaneous petition is also closed.
asr